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In his first important vote after being appointed to the U.S. Senate in December 2012, U.S. Sen. Brian Schatz weighed in against a five-year extension of the federal government’s expanded power to conduct electronic surveillance against terrorist targets outside the United States.
National security officials argue that the intelligence capability helps protect the United States from espionage and terrorist attacks. But civil liberties advocates complain that the law enables the government to secretly monitor the inter- national communications of U.S. citizens and residents without adequate safeguards.
"Americans have a constitutional right to privacy under the Fourth Amendment," Schatz said. "And privacy ought to be the rule, not the exception."
U.S. Rep. Colleen Hanabusa thinks Schatz made a mistake.
The congresswoman, who is running against Schatz in the Democratic primary, voted for the five-year extension. Without the law, she said, there would be no curbs on the federal government’s ability to do the kind of warrantless wiretapping that was broadly condemned under President George W. Bush.
In 2011, Congress extended through June 2015 the provisions of the law made through the USA Patriot Act. Hanabusa voted against that extension, but since it passed, she said, there needed to be some check on the government’s power.
"And as much as I would like to believe that our president wouldn’t abuse it like the way (former Vice President Dick) Cheney and Bush did, the bottom line was because the Patriot Act was extended, I believe that we needed to curb it, even if I would have preferred to see the whole thing just not be extended," she said.
The contrasting votes speak to the core campaign themes of both candidates: Schatz will stand with progressives on issues such as privacy; Hanabusa has the experience to understand legislative nuance.
The United States has long wrestled with the balance between national security and personal privacy.
Many Americans supported the federal government’s broadly expanded spying power after the Sept. 11, 2001, terrorist attacks. Yet many grew uncomfortable after The New York Times revealed in 2005 that Bush had authorized the sweeping warrantless wiretapping of international telephone and email communications that might be linked to al-Qaida and other terrorist organizations.
Revelations from Edward Snowden, the former National Security Agency contractor in Hawaii who in 2013 released documents detailing the United States’ vast international surveillance activities, have caused more public unease over the government’s reach into a digital world almost everyone touches through smartphones, tablets and laptops.
The Foreign Intelligence Surveillance Act was adopted in 1978 after public backlash against government intelligence abuses uncovered by a congressional panel led by then-U.S. Sen. Frank Church, D-Idaho. The law was also a response to guidance from the U.S. Supreme Court that a special framework, distinct from the warrant process used in criminal investigations, be established for national security surveillance.
Under the law, a secret court considers — and almost always approves — the government’s applications for electronic surveillance, physical searches and business records related to espionage and terrorist targets. For example, according to a report to Congress covering 2013, the secret court approved all 1,588 government applications for electronic surveillance but made modifications to 34.
After the 9/11 terrorist attacks, the law was expanded, in part through the USA Patriot Act, to permit roving wiretaps, broad searches for any tangible material, such as bulk phone records, and the targeting of lone foreign terrorist suspects without obvious links to foreign governments or terrorist organizations. Congress and President Barack Obama extended those provisions of the law through June 2015.
The other expansion, in 2008, was in response to President Bush’s warrantless wiretapping program. It allows the attorney general and the director of national intelligence to jointly authorize, usually with the approval of the secret court, the electronic surveillance of terrorist targets outside the United States for up to one year.
The federal government does not have to show probable cause that the target is linked to a foreign power or detail the nature or locations of the surveillance, but the eavesdropping must not intentionally target U.S. citizens or residents and must be conducted consistent with the Fourth Amendment to the U.S. Constitution, which protects against unreasonable searches and seizures.
The government must get a secret court order to target U.S. citizens abroad who have reasonable expectations of privacy. But the government does not have to show that the target is linked to terrorism or clandestine intelligence or identify the facilities that will be placed under surveillance.
Congress and Obama extended these provisons of the law through 2017 — the votes that split Schatz and Hanabusa.
The American Civil Liberties Union, on behalf of human rights, labor and media activists who feared their international communications would be intercepted by the government, filed a lawsuit alleging that the 2008 expansion of the law was an unconstitutional violation of the Fourth Amendment. In a 5-4 ruling in 2013, the U.S. Supreme Court held in Clapper v. Amnesty International that the plaintiffs did not have standing to sue because they could not show that their communications had been monitored by the government.
Schatz had supported amendments to the law that would have required some data on the number of Americans caught up in the surveillance, some transparency into secret court opinions, and a shorter extension to 2015.
"When they failed, they didn’t meet my test for balance," the senator said. "For the surveillance program, you have to strike the right balance. But FISA was a relic of the Bush years and a warrantless wiretapping program. It was originally conceived to monitor conversations overseas, but it has morphed into something that most American citizens — left, right and center — don’t recognize and don’t approve of."
Schatz said people in Hawaii, where the state Constitution has a unique right to privacy, are especially sensitive to privacy concerns.
"No one is suggesting that we stop our surveillance programs, but it is important to make sure that these are all done within the context of our state’s Constitution and the United States Constitution," he said.
Hanabusa, who joined the majority in Congress and Obama in extending the law, thought some curbs on surveillance were better than nothing.
The Senate vote was 73-23. The House vote was 301-118, although Hanabusa was among a minority of House Democrats who backed the extension.
"When you’re not able to stop it, the question becomes, What do you do?" the congresswoman said. "I mean, you can cast a protest vote and say, ‘I’m just opposed to all of this,’ or you can try to see it in terms of, ‘Well, I lost on my vote to say no to the extension (of the Patriot Act provisions).’
"So then what do we do? How do we make it so that it has the lesser impact on the people’s fundamental rights?"
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